Konesky v. Post Rd. Entm't

• Decision Date: 16 July 2013
• Docket Number: No. 34617.,34617.
• Court: Connecticut Court of Appeals
• Parties: Sandra KONESKY v. POST ROAD ENTERTAINMENT et al.

144 Conn.App. 128

72 A.3d 1152

Sandra KONESKY

v.POST ROAD ENTERTAINMENT et al.

No. 34617.

Appellate Court of Connecticut.

Argued Feb. 7, 2013.

Decided July 16, 2013.

Jan C. Trendowski, Centerbrook, with whom was Gregory A. Allen, for the appellant (substitute defendant).

John J. Kennedy, Jr., with whom were Edward L. Walsh, New Haven, and, on the brief, Jennifer Antognini–O'Neill, for the appellee (plaintiff).

DiPENTIMA, C.J., and GRUENDEL and BEACH, Js.

BEACH, J.

The substitute defendant Hula's New Haven, LLC,¹ appeals from the judgment of the trial court, rendered after a jury trial, awarding damages to the plaintiff, Sandra Konesky. The defendant claims that the trial court improperly construed and applied the mode of operation rule.² We agree and, accordingly, reverse the judgment of the trial court.

The following facts, which reasonably could have been found by the jury, are relevant to the resolution of this appeal. On the evening of January 11, 2008, the plaintiff and her husband, Stanley Konesky, attended an event organized by the Walter Camp Football Foundation at Hula Hank's Island Bar (Hula Hank's), a nightclub in New Haven owned and operated by the defendant. The plaintiff's husband was a former president of the foundation, which each year honors college football players. The honored players spend a long weekend in Connecticut and participate in a variety of activities, ranging from visits to children's hospitals to a black-tie dinner. The Friday evening event is typically a party at a nightclub, which is attended by the players, foundation members and officers, and members of the general public. For several years, including 2008, this event was held at Hula Hank's.

The Walter Camp event filled Hula Hank's nearly to its 650 person capacity. As was its practice at events of this scale, the defendant supplemented its three permanent bars by stationing several “beer tubs” at additional locations throughout the venue, where patrons could buy a bottle or can of beer. Large plastic tubs were filled with ice and beer and replenished as the beer sold out. Each tub was set up on top of a large speaker box. A server stood on top of the speaker box and handed beers to patrons below.

One of the beer tubs was positioned near a booth where the plaintiff and her husband had sat down shortly after arriving at Hula Hank's. Their booth was one step up from the club's wooden dance floor. After sitting at the booth for one-half hour or less, the plaintiff got up to use the restroom. After taking a couple of steps, she slipped and fell. The plaintiff immediately felt intense pain in her shoulder and foot, and could not get up off the floor by herself. She noticed that her pants were wet and saw water on the floor near the beer tub area, on top of the step. The plaintiff was taken by ambulance to Yale–New Haven Hospital, where she was diagnosed with a fractured shoulder and foot. She needed surgery to repair her fractured foot; her recovery required that she stay off her foot for eight to twelve weeks.

The plaintiff thereafter commenced this negligence action against the defendant,³ alleging, among other things, that the step from the booth area to the dance floor was defective, that the defendant had caused the floor area where the plaintiff had fallen to be slippery and hazardous, and that the defendant's chosen method of selling beer from the ice filled tubs was an inherently hazardous means of serving drinks. Following a jury trial, the plaintiff was awarded a total of $292,500 in damages, which reflected a 10 percent reduction of the award for the plaintiff's comparative negligence. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The plaintiff preliminarily asserts that the general verdict rule applies in this case. She argues that if either of the defendant's two claims on appeal fails, we must affirm the judgment. Specifically, the plaintiff contends that her one count complaint, which sounded in negligence, asserted two distinct legal theories of recovery: the first, relating to the allegedly defective step, based on traditional premises liability law, and the second, relating to the operation of the beer tubs, based, in part, on the “mode of operation” doctrine. Because interrogatories were not submitted to the jury distinguishing between these two purportedly distinct theories, the plaintiff claims that there is no way of discerning on which basis the jury found in her favor. We disagree with the assertion that the plaintiff's allegations established two separate legal bases for recovery for purposes of the general verdict rule.

“In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated.” Curry v. Burns, 225 Conn. 782, 790, 626 A.2d 719 (1993). “Under the general verdict rule, if a jury renders a general verdict for one party, and [the party raising a claim of error on appeal did not request] interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.... Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall.” (Internal quotation marks omitted.) Tetreault v. Eslick, 271 Conn. 466, 471, 857 A.2d 888 (2004).

Even in a case with a single count complaint, the general verdict rule applies when “reliance is placed upon grounds of action ... which are distinct, not because they involve specific sets of facts forming a part of the transaction but in the essential basis of the right replied upon....” (Internal quotations marks omitted.) Curry v. Burns, supra, 225 Conn. at 794, 626 A.2d 719. Thus, as our Supreme Court noted in Curry, the general verdict rule would apply in a case in which a single count of a complaint alleged both wanton misconduct and negligence. Id. The applicability of the general verdict rule “does not depend on the niceties of pleading but on the distinctness and severability of the claims and defenses raised at trial.” (Internal quotation marks omitted.) Id., at 787, 626 A.2d 719.

The various specifications of negligent conduct alleged by the plaintiff in her complaint—including the two at issue on appeal—all sound in premises liability. See Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 3–5, 60 A.3d 222 (2013); Fisher v. Big Y Foods, Inc., 298 Conn. 414, 419, 3 A.3d 919 (2010) (explaining that mode of operation rule provides “an exception to the notice requirement of traditional premises liability doctrine”); Kelly v. Stop & Shop, Inc., 281 Conn. 768, 797, 918 A.2d 249 (2007) ( Zarella, J., concurring) (“the mode of operation rule ... and traditional premises liability law require proof of essentially the same elements”). Thus, a plaintiff who attempts, as here, to prevail under either common-law premises liability principles or the mode of operation rule is seeking to vindicate the same “essential right”; Curry v. Burns, supra, 225 Conn. at 794, 626 A.2d 719; even though she may allege somewhat different specifications of negligent conduct to advance each claim. See Green v. H.N.S. Management Co., 91 Conn.App. 751, 756, 881 A.2d 1072 (2005) (general verdict rule “does not apply if a plaintiff submits to the jury several different specifications of negligent conduct in support of a single cause of action for negligence”), cert. denied, 277 Conn. 909, 894 A.2d 990 (2006).

The general verdict rule, then, does not apply and we are not precluded from reversing the judgment in favor of the plaintiff if we conclude that any ground on which the jury could have based its verdict was improper. See id., at 757, 881 A.2d 1072.

II

We next address the defendant's claim that the court misconstrued the mode of operation rule. The defendant contends that the mode of operation doctrine was erroneously applied for two reasons: (1) the particular business operation at issue was not self-service in nature, and (2) the only mode of operation that the plaintiff identified as being peculiar and inherently hazardous was the service of bottles and cans of beer from ice filled tubs, which, the defendant argues, is not significantly different from other means of performing this essential nightclub function.

The following additional procedural history is relevant to the defendant's claim. The plaintiff alleged in her amended complaint that the defendant operated a “portable bar on the floor and step area in such a manner that it was foreseeable that the defendant's employees and patrons would spill or drop beverages, ice, water and drinks as they were working, dancing or congregating, thereby creating a dangerouscondition in the immediate vicinity of the [portable] bar....” The defendant filed a motion in limine to preclude the introduction of evidence related to the mode of operation theory of premises liability. The court heard arguments on the issue and denied the defendant's motion.⁴ The court agreed with the plaintiff that the use of the portable bars constituted a “particular method of operation within a bar that creates an inherently foreseeable heightened risk....” The court stated that its ruling was consistent with our Supreme Court's holding in Fisher v. Big Y Foods, Inc., supra, 298 Conn. 414, 3 A.3d 919.

Whether the trial court properly construed and applied the mode of operation rule is a question of law over which we exercise plenary review. See id., at 424, 3 A.3d 919. The mode of operation rule is a relatively recent development in Connecticut negligence law. In Kelly v. Stop & Shop, Inc., supra, 281 Conn. at 791, 918 A.2d 249, Connecticut's seminal mode of operation case, our Supreme Court held that “a plaintiff establishes a prima facie case of negligence upon presentation of evidence that the mode of operation of the defendant's business...